Ruling: Family can sue BP agent in 2012 shooting death of Mexican boy

8/20/2019 Ruling: Family can sue BP agent in 2012 shooting death of Mexican boy

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Araceli Rodriguez,

Plaintiff,

v.

Lonnie Swartz,

Defendant.

No. 4:14-CV-02251-RCC

ORDER

INTRODUCTION

This case calls on the Court to answer two challenging questions: 1) whether a

Mexican national standing on the Mexican-side of the United States and Mexico border

at the time of the alleged violation can avail himself of the protections of the Fourth and

Fifth Amendments of the United States Constitution when a U.S. Border Patrol agent

standing in the United States uses excessive force against him; and 2) whether a U.S.

Border Patrol agent may assert qualified immunity based on facts he found out after the

alleged violation.

Specifically before the Court are Plaintiff Araceli Rodriguez’ First Amended

Complaint (“FAC”) (Doc. 18), Defendant Lonnie Swartz’ Fed.R.Civ.P. Rule 12(b)(6)

Motion to Dismiss (Doc. 30), Rodriguez’ Response (Doc. 46), and Swartz’ Reply (Doc

49). The Court heard oral arguments on this matter on May 26, 2015. For the reasons

stated below, the Court grants in part and denies in part Swartz’ Motion to Dismiss.

//

Case 4:14-cv-02251-RCC Document 58 Filed 07/09/15 Page 1 of 21


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BACKGROUND

The Court sets forth the following factual background and hereby imparts that

these statements are reiterations of Rodriguez’ allegations which may or may not be a

complete and accurate rendition of the facts of this case. See (Doc. 18). At this stage inthe proceedings, Swartz has made no concessions as to the veracity of Rodriguez’

allegations nor presented any contravening facts; such facts are not required when filing a

Rule 12(b)(6) motion to dismiss.

1. Rodriguez brings this suit on behalf of her deceased minor son, J.A. (Doc. 18 a

¶¶ 3, 6).

2. On the night of October 10, 2012, J.A. was walking home alone down the

sidewalk of Calle Internacional, a street that runs alongside the border fence onthe Mexican side of the border between the United States and Mexico. (Doc. 18 at

¶ 9).

3. According to an eyewitness who was walking behind J.A. that night, a Border

Patrol agent stationed on the U.S. side of the fence, now known to be Swartz,

opened fire. According to various reports, Swartz fired anywhere from 14 to 30

shots. Upon information and belief, Swartz did not issue any verbal warnings

before opening fire. (Doc. 18 at ¶ 10).

4.

J.A. was shot approximately ten times and collapsed where he was shot. Virtuallyall of the shots entered his body from behind. Upon information and belief, no one

else was shot. (Doc. 18 at ¶¶ 11-13).

5. Immediately prior to the shooting, J.A. was visible and not hiding—he was

peacefully walking down the street by himself. Eyewitnesses state that he did not

pose a threat and was not committing a crime, throwing rocks, using a weapon or

threatening U.S. Border Patrol agents or anyone else prior to being shot. (Doc. 18

at ¶ 14).

6.

At the moment he was shot, J.A. was walking on the southern side of CalleInternacional, directly across the street from a sheer cliff face that rises

approximately 25 feet from street level. The cliff is approximately 30 feet from

where J.A. was standing when shot. The border fence, which is approximately 20-

25 feet tall, runs along the top of the cliff. Thus, at the location where J.A. was

shot, the top of the fence towards approximately 50 feet above street level on the

Mexican side. The fence itself is made of steel beams that are 6.5 inches in



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diameter. Each beam is approximately 3.5 inches apart from the next. (Doc. 18 a

¶ 15).

7. At the time of the shooting, J.A. lived in Nogales, Sonora, Mexico, approximately

four blocks from where he was shot. Because J.A’s mother (Plaintiff, Araceli

Rodriguez) was away for work, J.A.’s grandmother often visited Nogales, Mexicoto care for him. J.A.’s grandmother and grandfather live in Arizona and were

lawful permanent residents of the United States at the time of the shooting. They

are now U.S. citizens. (Doc. 18 at ¶ 17).

8. Swartz fired from the U.S. side of the fence. Swartz acted under color of law

when shooting J.A. Upon information and belief, Swartz did not know whether

J.A. was a U.S. citizen or whether J.A. had any significant contacts with the

United States. (Doc. 18 at ¶¶ 17, 19).

9.

J.A.’s killing by Swartz is not a unique event, but part of a larger pattern ofshootings by Border Patrol agents in Nogales and elsewhere. (Doc. 18 at ¶ 20).

10. The U.S.-Mexico border area of Mexico is unlike other areas of Mexico. U.S

Border Patrol agents not only control the U.S. side of the fence, but through the

use of force and assertion of authority, also exert control over the immediate area

on the Mexican side, including where J.A. was shot. (Doc. 18 at ¶ 21).

11. U.S. control of the Mexican side of the border fence in Nogales and other areas

along the Southern border is apparent and longstanding, and recognized by

persons living in the area. (Doc. 18 at ¶ 22).

12. Border Patrol agents use guns, non-lethal devices and other weapons, as well as

military equipment and surveillance devices to target persons on the Mexican side

of the border. For example, U.S. surveillance cameras are mounted along the

border fence, monitoring activity on the Mexican side of the fence. Additionally

Border Patrol agents have opened fire into Nogales from the U.S. side on prior

occasions and are known to launch non-lethal devices such as pepper spray

canisters into Nogales neighborhoods from the U.S. side of the border fence.

(Doc. 18 at ¶ 23).

13.

U.S. Border Patrol agents exercise control over areas on the Mexican side of the

border adjacent to the international border fence. U.S. Border Patrol agents make

seizures on the Mexican side of the fence. U.S. Bureau of Customs and Border

Protection officials are authorized to be on Mexican soil to conduct pre-inspection

of those seeking admission to the United States. U.S. Border Patrol helicopters

fly in Mexican airspace near the border and swoop down on individuals. (Doc. 18

at ¶ 24).



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14. The Chief of the U.S. Border Patrol has acknowledged that U.S. border security

policy “extends [the United States’] zone of security outward, ensuring that our

physical border is not the first or last line of defense, but one of many.” Securing

Our Borders—Operation Control and the Path Forward: Hearing Before the

Subcomm. on Border and Maritime Security of the H. Comm. on HomelandSecurity, 112

th Cong. 8 (2011) (prepared by Michael J. Fisher, Chief of U.S

Border Patrol). (Doc. 18 at ¶ 24).

LEGAL STANDARD

“On a motion to dismiss under Rule 12(b)(6), a court must assess whether the

complaint ‘contains sufficient factual matter, accepted as true, to ‘state a claim to relief

that is plausible on its face.’” Chavez v. U.S., 683 F.3d 1102, 1108 (9th Cir. 2012) (citing

Ashcroft v. Iqbal, 556 U.S. 662, 678; Bell Atl. v. Twombly, 550 U.S. 544, 570 (2007)). “A

claim has facial plausibility when the plaintiff pleads factual content that allows the court

to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Id. at 1108-09; see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322-

23 (2007). In determining plausibility, the court must accept as true all material factual

allegations in the complaint, construe the pleadings in the light most favorable to the

plaintiff and make any reasonable inferences therefrom. Broam v. Bogan, 320 F.3d 1023

1028 (9th Cir. 2003). A court may dismiss a claim if a successful affirmative defense

appears clearly on the face of the pleadings. Jones v. Bock , 549 U.S. 199, 215 (2007).

DISCUSSION

I. Bivens, the extraterritorial application of the U.S. Constitution and qualified

immunity

Rodriguez asserts her claims against Swartz in his individual capacity for

deprivation of J.A.’s constitutional rights under the Fourth and Fifth Amendments to the

United States Constitution. (Doc. 18 at p.8). See Bivens v. Six Unknown Named Agents of

the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). In Bivens, the Supreme Court of the

United States held that money damages may be recovered against a federal official for



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violation of a plaintiff’s constitutional rights. In order to successfully allege a Bivens

claim, a plaintiff must plead factual matter demonstrating that he was deprived of a

clearly established constitutional right. Iqbal, 556 U.S. at 666.

Swartz argues that Rodriguez cannot state a claim that J.A. was deprived of aconstitutional right because J.A., a Mexican citizen without substantial voluntary

connections to the United States and standing on Mexican soil at the time of the alleged

violation, is not entitled to the protections of the Fourth and Fifth Amendments of the

United States Constitution. Should this Court hold that J.A. was protected by either or

both Amendments, Swartz asserts that he is entitled to qualified immunity because J.A.’s

rights pursuant to the Fourth or Fifth Amendments were not clearly established at the

time of the alleged violation.

Rodriguez responds by arguing that this Court need not analyze this case as an

extraterritorial application of the United States Constitution because Swartz’ conduct

took place entirely within the United States. Should the Court consider the extraterritorial

application of the Constitution, Rodriguez asserts that J.A. was protected by both the

Fourth and Fifth Amendments even while on Mexican soil. Rodriguez further avers that

Swartz should not be entitled to qualified immunity because he knew it was a crime to

fatally shoot a Mexican citizen across the border without justification, and because

Swartz did not know J.A.’s legal status or citizenship when he shot J.A., such that

qualified immunity should not apply post-hoc Swartz’ awareness of J.A.’s citizenship.

II. Hernandez v. United States et al . is persuasive, not controlling, authority

The parties’ arguments before this Court are framed in reference to Hernandez v.

United States, 757 F.3d 249 (5th Cir. 2014), a case with very similar arguments to those

now before the Court:On June 7, 2010, Sergio Adrian Hernandez Guereca, a fifteen-year-old Mexican

national, was on the Mexican side of a cement culvert that separates the United States

from Mexico. Id . at 255. Sergio had been playing a game with his friends that involved

running up the incline of the culvert, touching the barbed-wire fence separating Mexico



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and the United States, and then running back down the incline. Id. U.S. Border Patrol

Agent Jesus Mesa, Jr. arrived on the scene and detained one of Sergio’s friends, causing

Sergio to retreat and hide behind the pillars of a bridge on the Mexican side of the border

Id. Mesa, still standing in the United States, then fired at least two shots at Sergio, one ofwhich struck Sergio in the face and killed him. Id.

Sergio’s parents filed suit against the United States, unknown federal employees

and Mesa. Id. Similarly to the case before this Court, the claim against Mesa was made

pursuant to Bivens for violations Sergio’s Fourth and Fifth Amendment rights through the

use of excessive, deadly force. Id. Mesa moved to dismiss the claims against him

asserting qualified immunity and arguing that Sergio, as an alien injured outside the

United States, lacked Fourth or Fifth Amendment protections. Id. at 256. The U.S

District Court for the Western District of Texas agreed and dismissed the claims against

Mesa. Id. Sergio’s parents appealed.

A divided three judge panel of the Court of Appeals for the Fifth Circuit held that

in Sergio’s case when, “an alleged seizure occur[s] outside of [the U.S.] border and

involving a foreign national—the Fourth Amendment does not apply.” Id. at 267

Nevertheless, the panel majority also held “that a noncitizen injured outside the United

States as a result of arbitrary official conduct by a law enforcement officer located in the

United States may invoke the protections provided by the Fifth Amendment.” Id. at 272

The panel further found that Bivens extends to an individual located abroad who asserts

the Fifth Amendment right to be free from gross physical abuse against federal law

enforcement agents located in the United States based on their conscience-shocking

excessive use of force across our nation’s borders. Id. at 277. Finally, the panel held that

the facts alleged in the complaint defeated Mesa’s claim of qualified immunity stating“It does not take a court ruling for an official to know that no concept of reasonableness

could justify the unprovoked shooting of another person.” Id. at 279-80 (citing Hope v

Pelzer , 536 U.S. 730, 741 (2002)).

Upon Mesa’s motion, the Fifth Circuit Court of Appeals agreed to rehear



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Hernandez en banc. 771 F.3d 818 (5th Cir. 2014). In a per curiam decision, a unanimous

Fifth Circuit Court of Appeals affirmed the district court’s dismissal of both counts

against Mesa holding that Sergio’s parents failed to allege a violation of the Fourth

Amendment, and that Sergio’s Fifth Amendment rights were not “clearly established”when he was shot. Hernandez v. United States et al., --- F.3d --- (5th Cir. April 24, 2015)

2015 WL 1881566, at *1. In holding Sergio’s Fifth Amendment rights were not “clearly

established,” the Fifth Circuit Court of Appeals gave allegiance to the general rule of

constitutional avoidance and bypassed the issue of whether Sergio was entitled to

constitutional protection as a noncitizen standing on foreign soil. Id. at *2. At least three

judges wrote concurring opinions on the matter—each attempting to reconcile and apply

various Supreme Court holdings (including Johnson v. Eisentrager , 399 U.S. 763

(1950); Reid v. Covert , 354 U.S. 1 (1957); United States v. Verdugo-Urquidez, 494 U.S

259 (1990); and Boumediene v. Bush, 553 U.S. 723 (2008)) to facts unique to the Fifth or

any other circuit.

Swartz urges the Court to follow the Fifth Circuit Court of Appeals’ en banc

decision and dismiss both of Rodriguez’ claims based on theories of constitutional

extraterritoriality and qualified immunity. Rodriguez avers that Hernandez was wrongly

decided and holds no precedential value in this Circuit. The Court agrees that Hernandez

is not controlling authority in this circuit. All the same, the Court has been guided by the

thorough historical and legal analysis of the complex issues addressed in the Fifth Circuit

Appellate judges’ opinions and utilized the Hernandez decisions as a frame of reference

Nevertheless, while Hernandez shares many similar arguments to the case at hand, this

Court evaluates Rodriguez’ case on the facts alleged in her First Amended Complaint, on

the arguments made by the parties’ in their pleadings, and in light of the Ninth CircuitCourt of Appeal’s applicable and controlling case law. Applying this Circuit’s case law

to the facts of this specific case, this Court respectfully disagrees with the Fifth Circuit

Court of Appeals and arrives at a different conclusion as outlined below.

//



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III. J.A.’s seizure occurred in Mexico

The Court begins with Rodriguez’ contention that there is no need to analyze

J.A.’s seizure as an extraterritorial application of the constitution because Swartz

conduct occurred entirely within the United States. To support her position, Rodriguezcites to use the language in footnote sixteen of Wang v. Reno, 81 F.3d 808, 818 n.16 (9th

Cir. 1996) stating that the government’s conduct in the United States can constitute a

violation abroad. However, the Court in Wang clearly stated that “[t]he deprivation [of

Wang’s due process rights] occurred on American soil when Wang was forced to take the

witness stand,” and that the actions taken while Wang was abroad were “inextricably

intertwined with the ultimate violation.” Id . Such is not the same in the present case

where the ultimate violation, J.A.’s seizure, occurred entirely in Mexico.

A seizure occurs “only when there is a governmental termination of freedom of

movement…” Brower v. Cnty of Inyo, 489 U.S. 593, 596-97 (1989). In this case, J.A. was

not seized when Swartz shot at him, but when the bullets entered J.A.’s body and

impeded further movement. As such, any constitutional violation that may have

transpired materialized in Mexico. Accordingly, the Court now turns to the question of

whether the Fourth and/or Fifth Amendments of the United States Constitution protect

J.A. outside the United States. 1

IV. Rodriguez’ claim that Swartz violated J.A.’s Fourth Amendment rights

survives

A. Both Boumediene and Verdugo-Urquidez apply

The Supreme Court of the United States “has discussed the issue of the

Constitution’s extraterritorial application on many occasions.” Boumediene, 553 U.S. at

755-71. However, it was not until 2008’s Boumediene v. Bush that the Supreme Court

held for the first time that noncitizens detained by the United States government in

1 The Court also rejects as unpersuasive Rodriguez’ argument pursuant to Asah

Metal Indus. Co. v. Superior Court of Cal., 480 U.S. 102, 113 (1987): that judicial proceedings, and therefore, any government actions that could violate the litigants’ rightstake place inside the United States. Asahi focused on when a state court could exercise personal jurisdiction over a foreign corporation. Jurisdiction is not at issue in this case.



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territory over which another country maintains de jure sovereignty have any rights under

the United States Constitution. Id. at 771 (addressing whether the Suspension Clause has

full effect at Naval Station in Guantanamo Bay in case where aliens detained as enemy

combatants sought the Writ of Habeas Corpus).In their pleadings, the parties disagree as to which standard the Court should apply

to decide whether the Fourth and Fifth Amendments of the United States Constitution

apply in this case. Swartz argues that Boumediene is limited to the Suspension Clause and

inapplicable in the present case. Further, Swartz avers that the “voluntary connections”

test announced in Verdugo-Urquidez’ controls Rodriguez’ Fourth Amendment claim

Verdugo-Urquidez, 494 U.S. at 261, 271 (holding that the Fourth Amendment does not

apply to the search and seizure by United States agents of property owned by a

nonresident and located in a foreign country where nonresident had no voluntary

connection to the United States). Rodriguez responds that Verdugo-Urquidez’ “voluntary

connections” test was repudiated by the Supreme Court in Boumediene where the Court

applied a “general functional approach” and “impracticable and anomalous” standard

when determining the extraterritoriality of the United States Constitution. 553 U.S. at

755-72.

The Fifth Circuit Court of Appeals grappled with this very question in addressing

Hernandez and decided to apply Verdugo-Urquidez’ “sufficient connections

requirement” in light of Boumediene’s “general functional approach” as to the Fourth

Amendment claim. Hernandez, 757 F.3d at 266. In arriving at this conclusion, the Fifth

Circuit Court of appeals rejected 1) Defendant Mesa’s argument that the Constitution

does not guarantee rights to foreign nationals injured outside the sovereign territory of the

United States, 2) the district court’s finding that Boumediene was limited to theSuspension Clause, and 3) the plaintiffs’ argument that the Court should ignore Verdugo-

Urquidez in light of Boumediene. Id. at 260, 262, and 265. Applying both standards, the

appellate court considered the fact that Hernandez lacked: American citizenship,

territorial presence in the United States, interest in entering the United States, acceptance



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of societal obligations, and sustained connections to the United States. Id. Additionally

the Court weighed several practical considerations in determining whether Hernandez

was protected by the Fourth Amendment including the uniqueness of the border. Id . at

266-67 (discussing the limited application of the Fourth Amendment during searches atthe border, national self-protection interests, the increase of Border Patrol agents at the

southwest border, and the use of sophisticated surveillance systems). Ultimately, the

appellate court found that Hernandez was not entitled to the protections of the Fourth

Amendment based on the facts alleged.

The Ninth Circuit Court of Appeals similarly determined that both Boumediene’s

“functional approach” factors and Verdugo-Urquidez’ “significant voluntary connection”

test applied in the case of a woman seeking to assert her rights under the First and Fifth

Amendments of the United States Constitution. Ibrahim v. Dep’t of Homeland Sec., 669

F.3d 983, 994-97 (9th Cir. 2012). The Court found a comparison of Ibrahim’s case with

Verdugo-Urquidez, Eisentrager , and Boumediene instructive in rejecting the

government’s bright-line “formal sovereignty-based” test and in holding that the plaintiff

had established voluntary connections to the United States during her studies at an

American university. Id. at 995-97. Similarly, this Court finds an analysis of these cases

instructive in finding that both Boumediene’s functional approach factors and Verdugo-

Urquidez “voluntary connections” test apply in this case.

In 1950’s Eisentrager , the Supreme Court of the United States found that German

citizens who had been arrested in China, convicted of violating the laws of war after

adversary trials before a U.S. military tribunal in China, and sent to a prison in Germany

to serve their sentences did not have the right to seek the Writ of Habeas Corpus under

the United States Constitution. 339 U.S. at 770-77 (considering (a) petitioners’ status asenemy aliens; (b) lack of previous territorial presence or residence in the United States

(c) capture and custody by U.S. military as prisoners of war; (d) convictions by Military

Commission sitting outside the United States; (e) for offenses against laws of war

committed outside the United States; and (f) at all times imprisoned outside the United



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States.)

In 1990’s Verdugo-Urquidez, a Mexican-national was extradited from Mexico to

face drug charges in the United States. 494 U.S. at 262. While awaiting trial, American

law enforcement agents working with Mexican authorities performed a warrantlesssearch of Verdugo-Urquidez’ Mexican residences and seized various incriminating

documents. Id. The criminal defendant sought to suppress this evidence and alleged

violations of his Fourth Amendment rights. Id. at 263. The Supreme Court of the United

States considered the text and history of the Fourth Amendment, as well as Supreme

Court cases discussing the application of the Constitution to aliens extraterritorially. The

Supreme Court found that under the circumstances (where Verdugo-Urquidez was a

citizen and resident of Mexico with no voluntary attachment to the United States and the

place to be searched was located in Mexico), the Fourth Amendment had no application

Id . at 274-75. Concurring in the opinion, Justices Kennedy and Stevens each wrote

separately to address the fact that applying the Warrant Clause to searches of noncitizens

homes in foreign jurisdictions would be impractical and anomalous due to practical

considerations. Id. at 275-79.

In 2008’s Boumediene, the plaintiffs were aliens who had been designated as

enemy combatants, were detained at the United States Naval Station in Guantanamo Bay

Cuba, and sought the Writ of Habeas Corpus. 553 U.S. at 732. The government argued

that because of their status as enemy combatants and their physical location outside the

sovereignty of the United States, they had no constitutional rights and no privilege to

Habeas Corpus. Id. at 739. The Supreme Court rejected the government’s argument

instead finding that “questions of extraterritoriality turn on objective factors and practical

concerns, not formalism.” Id. at 764. In so holding, Boumediene addressed both Eisentrager and Verdugo-Urquidez and found both of these decisions to stand for the

proposition that the extraterritorial reach of the constitution depends upon “practica

considerations” including the “particular circumstances, the practical necessities, and the

possible alternatives which Congress had before it” and in particular, whether judicia



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enforcement of the provision would be “impracticable and anomalous.” Id. at 759-66.

In Ibrahim, the Court of Appeals for the Ninth Circuit considered that Ibrahim was

unlike the plaintiffs in Eisentrager —she had not been convicted of, or even charged with

violations of any law. 669 F.3d at 996. On the other hand, Ibrahim shared an importantsimilarity with the plaintiffs in Boumediene —she sought the right to assert constitutiona

claims in a civilian court in order to correct what she contended was a mistake. Id. at 997

Here, J.A. was also unlike the plaintiffs in Eisentrager —he had not been charged with or

convicted of violating any law. Similarly to the plaintiffs in Boumediene, J.A. was on

foreign soil when he was seized by American forces and now seeks to assert that his

seizure was unlawful. Per this Circuit’s precedent in Ibrahim and the Supreme Court’s

reasoning in Boumediene, this Court sees no reason why Boumediene should not apply in

this case. Because Verdugo-Urquidez has not been overruled and considers the Fourth

Amendment explicitly, this Court finds that it must also apply the “voluntary

connections” test. In sum, this Court finds most appropriate to apply the “practical

considerations” outlined in Boumediene in conjunction with Verdugo-Urquidez’

“voluntary connections” test to evaluate whether J.A. was protected by the Fourth

Amendment.

B. The facts alleged in this case weigh in favor of establishing that J.A. was entitledto the protections of the Fourth Amendment of the U.S. Constitution

The Supreme Court stated three factors relevant to determining the extraterritorial

application of the Constitution (specifically the Suspension Clause) in Boumediene: (1)

the citizenship and status of the claimant, (2) the nature of the location where the

constitutional violation occurred, and (3) the practical obstacles inherent in enforcing the

claimed right. 553 U.S. at 766-71. The relevant obstacles included, but were not limited

to, the consequences for U.S. actions abroad, the substantive rules that would govern the

claim, and the likelihood that a favorable ruling would lead to friction with another

country’s government. Id. at 766. The Court considers these along with the “voluntary

connections” test outlined in Verdugo-Urquidez to find that Rodriguez can assert J.A.’s

rights pursuant to the Fourth Amendment.



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To begin, the Court considers J.A.’s citizenship, status, and voluntary connections

to the United States. J.A. was a sixteen-year-old Mexican citizen. See Doc. 18 at ¶¶ 1-2

At the time Swartz seized him, J.A. was not suspected of, charged with, or convicted of

violating any law. Just prior to the shooting, J.A. was visible and not hiding. Id . at ¶14Observers stated that he did not pose a threat, but was peacefully walking down the

street. Id. He was not committing a crime, nor was he throwing rocks, using a weapon, or

in any way threatening U.S. Border Patrol agents or anyone else. Id . Further, J.A. was not

a citizen of a country with which the United States are at war, nor was he engaged in an

act of war or any act that would threaten the national security of the United States. Id

Thus, J.A.’s status was that of a civilian foreign national engaged in a peaceful activity in

another country, but within the U.S.’s small-arms power to seize. The Court here finds

that while J.A.’s nationality weighs against granting him protection pursuant to the

Fourth Amendment, his status as a civilian engaged in peaceful activity weighs in favor

of granting him protection despite the fact that J.A. was in the territory of another country

when he was seized.

As to substantial voluntary connections to the United States, this Court finds that

J.A. had at least one. J.A. and his family lived within the region formerly called “ambos

Nogales,” or “both Nogales,” referring to the adjacent towns of Nogales, Arizona and

Nogales, Sonora—once adjacent cities flowing into one-another, now divided by a fence

Id. at ¶ 17. In particular, J.A. had strong familial connections to the United States. Both

his grandparents were legal permanent residents (now citizens) of the United States

residing in Nogales, Arizona. Id. J.A.’s grandmother would often cross the border into

Mexico to care for J.A. while his mother worked. Id. Further, J.A.’s home in Nogales

Sonora, Mexico was within four blocks’ distance from the U.S.-Mexico border. IdLiving in such proximity to this country, J.A. was likely well-aware of the United States’

(and specifically the U.S. Border Patrol’s) de facto control and influence over Nogales

Sonora, Mexico. Id. at ¶¶ 17, 21-24.

//



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The Court here considers these same factors in assessing the nature of the location

where the alleged constitutional violation occurred.2 Specifically, the Court considers

Rodriguez’ factual allegations that the U.S.-Mexico border is unlike other areas of

Mexico. Id . at ¶¶ 21-24. “U.S. Border Patrol agents not only control the U.S. side of thefence, but through the use of force and assertion of authority, they also exert control over

the immediate area on the Mexican side, including where J.A. was shot.” Id. at ¶ 21

“U.S. control of the Mexican side of the border fence in Nogales and other areas along

the Southern border is apparent and longstanding, and recognized by persons living in

this area.” Id. at ¶ 22. “Border patrol agents use guns, non-lethal devices and other

weapons, as well as military equipment and surveillance devices to target persons on the

Mexican side of the border….Border Patrol agents have opened fire into Nogales from

the U.S. side on prior occasions and are known to launch non-lethal devices such as

pepper spray canisters into Nogales neighborhoods from the U.S. side of the border

fence. By shooting individuals on the Mexican side of the border area, the United States

through Border Patrol, controls the area immediately adjacent to the international border

fence on the Mexican side. This control extended to the street, Calle Internacional, where

J.A. was killed.” Id. at ¶ 23. The Court finds this factor to weigh in favor of granting J.A.

constitutional protection pursuant to the Fourth Amendment.

The Court also considers the practical obstacles inherent in enforcing the claimed

right. These considerations include the nature of the right asserted, the context in which

the claim arises, and whether recognition of the right would create conflict with a foreign

sovereign’s laws and customs. Boumediene, 553 U.S. at 755-65. The nature of the right

asserted here is the right to be free from unreasonable seizures—specifically, the

fundamental right to be free from the United States government’s arbitrary use of deadlyforce. See Doc. 18 at ¶¶ 35-38. The claim here arises as a lawsuit in a United States court

2 See Hernandez v. United States, 757 F.3d 249, 267 (5th Cir. 2014) (outlining the scope

of the U.S. Border Patrol’s presence and influence along the U.S.’s southwest border withMexico.) See also Boumediene, 553 U.S. at 754 (“Our cases do not hold it is improper forus to inquire into the objective degree of control the Nation asserts over foreignterritory.”)



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and asks that this court apply U.S. constitutional law to the actions of a U.S. Border

Patrol agent firing his weapon from within the United States. Id. at ¶¶ 4-5.; Cf

Boumediene, 553 U.S. at 759-64 (discussing practical considerations of providing

plaintiffs with ability to assert their rights abroad). Rodriguez has provideddocumentation from the Mexican government such that there would be no conflict with

Mexico’s laws and customs if this Court afforded J.A. protection under the Fourth

Amendment. See Doc. 46-1. The Court finds that these factors weigh in favor of granting

J.A. protection under the Fourth Amendment.

Finally, the Court gives weight to the Supreme Court’s concerns in Verdugo-

Urquidez —that applying the Fourth Amendment to the warrantless search and seizure of

a Mexican national’s home in Mexico “could significantly disrupt the ability of the

political branches to respond to foreign situations involving our national interest” and

could also plunge U.S. law enforcement and military agents “into a sea of uncertainty as

to what might be reasonable in the way of searches and seizures conducted abroad.” 494

U.S. at 273-74; see also Hernandez, 757 F.3d at 267 (noting that extending the Fourth

Amendment protections to a Mexican national on Mexican soil might carry a host of

implications for U.S. Border Patrol’s use of sophisticated surveillance systems (including

mobile surveillance units, thermal imaging systems, unmanned aircrafts and other large-

and small-scale non-intrusive inspection equipment per, Kyllo v. United States, 533 U.S

27, 40 (2001))).

The Court here finds that such concerns are ameliorated by the fact that this case

does not involve the Warrant Clause of the Fourth Amendment, magistrate judges, or the

issuance of warrants and/or the searches and seizure of property abroad. This case

addresses only the use of deadly force by U.S. Border Patrol agents in seizing individualsat and near the United States-Mexico border. U.S. Border Patrol agents are already

trained in the limits of the Fourth Amendment when addressing citizens and non-citizens

alike when these individuals place foot within the United States. See, e.g. 8 C.F.R. §

287.8(a)(2). These agents would require no additional training to determine when it is



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appropriate to use deadly force against individuals (whether citizens or noncitizens alike)

located on the Mexican side of the United States-Mexico border.

Weighing all of the aforementioned factors, this Court finds that J.A. was entitled

to protection pursuant to the Fourth Amendment. The Court acknowledges that it hasarrived at a different conclusion from that of the Court of Appeals for the Fifth Circuit in

Hernandez v. U.S., 757 F.3d at 267. This Court respectfully disagrees with how the

Circuit Court weighed some factors, but bases its decision to extend J.A. protection

pursuant to the Fourth Amendment on the facts alleged in Rodriguez’ First Amended

Complaint and this Court’s own analysis of the relevant case law. (Doc. 18). At its heart,

this is a case alleging excessive deadly force by a U.S. Border Patrol agent standing on

American soil brought before a United States Federal District Court tasked with

upholding the United States Constitution—that the deceased was a Mexican national

standing on Mexican soil at the time the violation occurred is but one of the many

practical considerations and factors the Supreme Court of the United States has ordered

the lower courts to consider. Pursuant to the facts presented before this Court in

Rodriguez’ First Amended Complaint, the factors outlined in Verdugo-Urquidez and

Boumediene weigh in favor of extending J.A. constitutional protection pursuant to the

Fourth Amendment.

V. Rodriguez’ claim pursuant to the Fifth Amendment is dismissed

Rodriguez’ First Amended Complaint alleges that Swartz’ actions violated J.A.’s

Fifth Amendment guarantee of substantive due process. In his motion to dismiss, Swartz

alleges that Rodriguez’ Fifth Amendment claim is improperly before this Court as a

substantive due process violation that is best analyzed pursuant to the Fourth

Amendment.In fact, the Supreme Court of the United States has held that “all claims that law

enforcement officers have used excessive force—deadly or not—in the course of an

arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the

Fourth Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive



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due process’ approach.” Graham v. Connor, 490 U.S. 386, 395 (1989); see also Albright

v. Oliver , 510 U.S. 266, 273 (1994); Cnty. of Sacramento v. Lewis, 523 U.S. 833, 843

(1998). “Because the Fourth Amendment provides an explicit textual source of

constitutional protection against this sort of physically intrusive governmental conductthat Amendment, not the more generalized notion of ‘substantive due process,’ must be

the guide for analyzing these claims.” Id.

Finding both that J.A. was ‘seized’ and that his excessive force claim pursuant to

the Fourth Amendment may proceed, this Court hereby grants Swartz’ motion to dismiss

Rodriguez’ claim pursuant to the Fifth Amendment because Swartz conduct is more

properly analyzed under the Fourth Amendment. In dismissing Rodriguez’ Fifth

Amendment claim, this Court does not reach Rodriguez’ argument that J.A. should be

entitled to protection under the Fifth Amendment’s prohibition against arbitrary

deprivation of life if this Court were to find that the Fourth Amendment did not protect

J.A. See Doc. 46 at pp. 21-22.

VI. Swartz is not entitled to qualified immunity

Qualified immunity “gives government officials breathing room to make

reasonable but mistaken judgments,” and “protects ‘all but the plainly incompetent or

those who knowingly violate the law.’” Messerchmidt v. Millender , 132 S.Ct. 1235

1244-45, citing Ashcroft v. al-Kidd , 131 S.Ct. 2074, 2085 (2011) (quoting Malley v

Briggs, 475 U.S. 335, 341 (1986)). “[W]hether an official protected by qualified

immunity may be held personally liable for an allegedly unlawful official action

generally runs on the ‘objective legal reasonableness’ of the action, assessed in light of

the legal rules that were ‘clearly established’ at the time it was taken.” Id.

Courts are to analyze this question from the perspective “of a reasonable officer onthe scene, rather than with the 20/20 vision of hindsight” and thus allow “for the fact that

police officers are often forced to make split-second judgments—in circumstances that

are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in

a particular situation.” Graham, 490 U.S. at 396.



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Qualified immunity is not merely a defense. Rather, it provides a sweeping

protection from the entirety of the litigation process. Harlow v. Fitzgerald , 457 U.S. 800

819 (1982). Indeed, qualified immunity guards against the “substantial social costs

including the risk that fear of personal monetary liability and harassing litigation willunduly inhibit officials in the discharge of their duties.” Anderson v. Creighton, 483 U.S

635, 638 (1987). When law enforcement officers are sued for their conduct in the line of

duty, courts must balance between “the need to hold public officials accountable when

they exercise power irresponsibly and the need to shield officials from harassment,

distraction, and liability when they perform their duties reasonably.” Pearson v

Callahan, 555 U.S. 223, 231 (2009).

Judges are to exercise their sound discretion in deciding which of the two prongs

of qualified immunity analysis should be addressed first in light of the circumstances of

the particular case. Id. at 236. The first inquiry is whether the facts demonstrate that the

defendant officer violated one or more of plaintiff’s constitutional rights. Id . If the answer

is “no,” the matter is concluded because without a violation there is no basis for

plaintiff’s lawsuit to proceed. Id . If the answer is “yes,” the court must decide whether the

right at issue was “clearly established” at the time of the alleged misconduct. Id. at 232

A right is clearly established where “it would be clear to a reasonable officer that his

conduct was unlawful in the situation he confronted.” Brosseau v. Haugen, 543 U.S. 194

199 (2004) (citations omitted). Qualified immunity is only applicable where both prongs

are satisfied. Pearson, 555 U.S. at 232.

Having previously found that J.A. was protected by the Fourth Amendment, the

two questions remaining before the Court are 1) whether the FAC alleges sufficient facts

to establish the plausibility that Swartz violated J.A.’s constitutional right to be free fromunreasonable seizures and 2) whether the right was clearly established at the time of the

violation. Both of these questions are to be analyzed accepting facts alleged in

Rodriguez’ First Amended Complaint as true and making all reasonable inferences in

favor of Rodriguez. Accordingly, the Court finds that Rodriguez alleges sufficient facts to



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establish the plausibility that Swartz violated J.A.’s Fourth Amendment rights. Further

the Court finds that J.A.’s rights were clearly established when Swartz seized him such

that Swartz is not entitled to assert qualified immunity.

Over thirty years ago, the Supreme Court of the United States established that lawenforcement officers could not use deadly force on an unarmed suspect to prevent his

escape. Brosseau v. Haugen, 543 U.S. 194, 203 (2004) (J. Breyer concurring) (“The

constitutional limits on the use of deadly force have been clearly established for almost

two decades. In 1985 [the Supreme Court of the United States] held that the killing of an

unarmed burglar to prevent his escape was an unconstitutional seizure.”) (citing

Tennessee v. Garner , 471 U.S. 1 (1985)). This means that for over thirty years, law

enforcement officers have been well-aware that it is unlawful (and in violation of an

individual’s Fourth Amendment rights to be free from unreasonable seizures) to use

deadly force against an unarmed suspect to prevent his escape. Additionally, officers are

also aware that in “obvious cases” rights can be “clearly established” even without a body

of relevant case law. See Hope, 536 U.S. at 738 (citing U.S. v. Lanier , 520 U.S. 259, 270-

271 (1997)).

The facts alleged in the First Amended Complaint are that J.A. was peacefully

walking home and was not engaged in the violation of any law or threatening anyone

when Swartz shot him at least ten times. (Doc. 18 at ¶¶ 10, 14). As alleged in Rodriguez’

First Amended Complaint, this is not a case involving circumstances where Swartz

needed to make split-second judgment—in circumstances that are tense, uncertain, and

rapidly evolving—about the amount of force that is necessary in a particular situation

Instead, the facts alleged in the First Amended Complaint, demonstrate an “obvious case”

where it is clear that Swartz had no reason to use deadly force against J.A.Swartz attempts to differentiate this case from other deadly force cases by

alleging that at the time he shot J.A., it was not clearly established whether the United

States Constitution applied extraterritorially to a non-citizen standing on foreign soil.

Yet, at the time he shot J.A., Swartz was an American law enforcement officer standing



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on American soil and well-aware of the limits on the use of deadly force against U.S.

citizens and non-citizens alike within the United States. See, e.g. 8 C.F.R. § 287.8(a)(2)

What Swartz did not know at the time he shot was whether J.A. was a United States

citizen or the citizen of a foreign country, and if J.A. had significant voluntaryconnections to the United States. (Doc. 18 at ¶ 17). It was only after Swartz shot J.A. and

learned of J.A.’s identity as a Mexican national that he had any reason to think he might

be entitled to qualified immunity.3 This Court finds that Swartz may not assert qualified

immunity based on J.A.’s status where Swartz learned of J.A.’s status as a non-citizen

after the violation. See Moreno v. Baca, 431 F.3d 633, 641 (9th Cir. 2005) (holding that

“police officers cannot retroactively justify a suspicionless search and arrest on the basis

of an after-the-fact discovery of an arrest warrant or a parole violation”). 4

This holding again contravenes that of the Fifth Circuit Court of Appeals in

Hernandez v. United States, --- F.3d --- (2015), 2015 WL 1881566. This Court

respectfully disagrees with the en banc panel’s decision that “any properly asserted right

was not clearly established to the extent the law requires.” Id. at *2. In part, this may be

because this Court does not characterize the question before the Court as “whether the

general prohibition of excessive force applies where a person injured by a U.S. official

standing on U.S. soil is an alien who had no significant voluntary connection to, and was

not in, the United States when the incident occurred.” Id. Instead, this Court focuses on

whether an agent may assert qualified immunity on an after-the-fact discovery that the

individual he shot was not a United States citizen; this Court concludes that qualified

3 Had Swartz subsequently found that J.A. was a citizen of the United States, he

could not challenge that the Constitution applied to J.A. See Reid v. Covert , 354 U.S. 1(1957) (applying the Constitution to U.S. citizens abroad). Similarly, Swartz could not

argue that the Constitution did not apply to legal permanent residents and perhaps evenundocumented aliens who had established substantial voluntary connections with theUnited States. See Ibrahim, 669 F.3d at 994-95. Further, had J.A. been situated somethirty-five feet north in the territory of the United States, there would be no question thathe would be protected by the Constitution. Id.

4 Again, the Court does not reach Rodriguez’ arguments that the Fifth Amendmen

applies if the Fourth Amendment does not. See Doc. 46 at 21-22. Similarly, the Courtdoes not reach the question of whether J.A.’s Fifth Amendment rights were violated orclearly established when he was seized by Swartz.



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immunity may not be asserted in this manner.

VII. Conclusion

The Court finds that, under the facts alleged in this case, the Mexican national may

avail himself to the protections of the Fourth Amendment and that the agent may notassert qualified immunity.

In addressing a Rule 12(b)(6) motion to dismiss, this Court must accept as true all

material factual allegations in the complaint, construe the pleadings in the light most

favorable to the plaintiff, and make any reasonable inferences therefrom. Applying this

standard, Rodriguez has stated a claim upon which relief can be granted. J.A. was entitled

to the protections of the Fourth Amendment, even as a non-citizen standing on foreign

soil pursuant to both his substantial voluntary connections to the United States and

Boudemeine’s functional approach in addressing his claim. Because Rodriguez’ claim of

excessive force should be analyzed under the Fourth Amendment, this Court dismisses

Rodriguez’ Fifth Amendment claim. Finally, Swartz cannot assert qualified immunity

when he found out after-the-fact that he had exerted deadly force upon a noncitizen

Accordingly,

IT IS HEREBY ORDERED granting in part and denying part Swartz’ Motion to

Dismiss (Doc. 30). Rodriguez’ claim pursuant to the Fifth Amendment is dismissed;

Rodriguez’ claim pursuant to the Fourth Amendment proceeds.

Dated this 9th day of July, 2015.


Ruling: Family can sue BP agent in 2012 shooting death of Mexican boy

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